NLRB expands criteria for assessing 'protected concerted activity'.

A new National Labor Relations Board ruling has loosened the criteria for determining if worker activities are protected by Section 7 of the National Labor Relations Act. That part of the law guarantees employees the right to engage in "protected concerted activities" aimed at collectively improving working conditions.

The NLRB's decision in Miller Plastic Products reaffirmed a principle dating back to 1986 that "the question of whether an employee has engaged in concerted activity is a factual one based on the totality of the record evidence."

Miller Plastic Products overturned a 2019 Trump-era decision (Alstate Maintenance) that effectively narrowed the test for determining concerted activity by prescribing a narrow checklist of factors for determining if employees' actions qualified as concerted activity.

The new case involved an employee who was fired after complaining about lax COVID-19 safety standards in the factory where he worked. Before he was terminated, the employee had been counseled not to "gripe" about safety problems with co-workers. An NLRB administrative law judge determined that those conversations constituted protected concerted activity.

On Aug. 25, the full board agreed. It said the employee's conversations with...